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The Problem of Legislative Purpose in Equal Protection Cases
The United States Supreme Court chronically bickers over the boundaries of its own power. It must restrain itself from treading on congressional turf, while also curbing Congress from enacting laws that appear permissible on the surface, yet cloak unacceptable aims. In McCulloch v. Maryland, Chief Justice John Marshall delineated the early role of the Court in legislative affairs. He said, Where the law is not prohibited, and is really calculated to effect any of the objects entrusted to the government, to undertake here to inquire into the degree of its necessity would be to pass the line which circumscribes the judicial department, and to tread on legislative ground. This court disclaims all pretensions to such a power. (Emphasis added.) Marshall then supplemented that confession with the caveat: Should Congress, under the pretext of executing its powers, pass laws for the accomplishment of objects not entrusted to the government, it would become a painful duty of this tribunal . . . to say that such an act was not the law of the land. The problem the modern Court faces, which arises prominently in equal protection analysis and rationality review, is how to determine if the law is “really calculated to effect any of the objects entrusted to the government,” or if Congress is operating “under the pretext of executing its powers.” U.S. Railway Retirement Bd. v. Fritz (p. 616) is a prime example of the turmoil this analysis can create, and it provides a range of judicial views on how the Court should examine the legislative branch in equal protection cases. The terseness of Chief Justice Rehnquist’s opinion in Fritz reflects his attitude towards the extent to which the Court should question Congress. He said, “Where, as here, there are plausible reasons for Congress’ action, our inquiry is at an end.” To the Chief Justice, the mere existence of credible reasons for Congressional action suffices. Whether or not Congress

Page 2 of 5 Blue book # 3931 actually acted upon those plausible reasons is not of judicial concern because, “this Court has never insisted that a legislative body articulate its reasons for enacting a statute.” Not only has the Court not required this, but “It is, of course, ‘constitutionally irrelevant whether this reasoning in fact underlay the legislative decision’ [Flemming v. Nestor, 363 U.S. 603 (1960)].” This attitude does not quite comport with that of Chief Justice Marshall though. Marshall noted that if the law is “really calculated” to achieve its purpose, then the Court has no business asking about the necessity of the law. However, if Congress designs a law carelessly, Marshall left open the possibility that the Court may inquire into Congress’ intentions because a poorly designed law will have an unclear purpose and possibly unintended effects, or an unconstitutional aim. Chief Justice Rehnquist ignores all of this and expounds, “We have historically assumed that Congress intended what it enacted.” While Justice Rehnquist appears to be crediting Congress for its historical competency, this statement clashes with Marshall’s pretextual stance. If Congress’ intentions are bulletproof, then Marshall’s willingness to undertake the “painful duty” of rebuking Congress is a task the Court would seemingly never have to assume since Congress always enacts what it intends and intends what it enacts. There could never be any pretext. Justice Brennan, by contrast, recognizes the defect of this argument and vigorously disagrees with the Chief Justice. John Marshall would approve of Justice Brennan’s reproach of the Chief Justice. Justice Brennan is not so willing to let Congress off the hook without further investigation. Brennan spotlights the glaring failure in Chief Justice Rehnquist’s logic, and says, “By presuming purpose from result, the Court reduces analysis to tautology. If that were the extent of our analysis, we would find every statute [perfectly] tailored to achieve its purpose.” (p. 619) Justice Brennan

Page 3 of 5 Blue book # 3931 then undertakes an analysis of how to determine tactfully the real purpose of legislation in relation to its ends. He writes, The standard we have applied is properly deferential to the Legislative Branch: where Congress has articulated a legitimate governmental objective, and the challenged classification rationally furthers that objective, we must sustain the provisions. In other cases, however, the courts must probe more deeply. Where Congress has expressly stated the purpose of a piece of legislation, but where the challenged classification is either irrelevant to or counter to that purpose, we must view any post hoc justifications proffered by Government attorneys with skepticism. A challenged classification may be sustained only if it is rationally related to achievement of an actual legitimate governmental purpose. (p. 619-20) This analysis reflects Brennan’s concern that Congress is not bulletproof and, of course, does not always enact that which it intended. In fact, he even says, in this case, that Congress was duped and the Chief Justice’s willingness to blind himself to Congressional intention means that he was fooled as well,1 a phenomenon that even John Marshall may not have anticipated. However, in contrast to both Justice Brennan and Justice Rehnquist, Justice Stevens finds some middle ground. Justice Stevens’ raises a notable qualification to Marshall’s pretext warning. He says, “Actual purpose is sometimes unknown. Moreover, undue emphasis on actual motivation may result in identically worded statutes being held valid in one State and invalid in a neighboring State.” (p.618) This is a sound argument, one that may be intended to cool the heated pen of Justice Brennan, and Justice Stevens puts forth his own theory of how to determine the motivations of the legislature. He is willing to give Congress some benefit of the doubt and assume that if a legitimate purpose exists, then the Court may reasonably infer that its existence “motivated an impartial legislature.” (p. 618) He is not as willing as Justice Brennan to rifle through the legislative history behind a statute, rather he would “discover a correlation between

To which the Chief Justice replies, “The comments in the dissenting opinion….are just that: comments in a dissenting opinion.” (p. 617)

Page 4 of 5 Blue book # 3931 the classification and either the actual purpose of the statute or a legitimate purpose.” (p. 618) Therefore, Justice Stevens is willing to accept the existence of a legitimate purpose and not overly concern himself with whether or not that purpose truly motivated the legislature. In his mind, Congress may ultimately get it right even if it was motivated by something other than the legitimate purpose the Court chooses to recognize. Despite Justice Stevens’ words of seeming reconciliation, the wrangling continued in several more cases. Schweiker v. Wilson (p.621) and FCC v. Beach Communications, Inc. (p. 624) pitted the Justices against one another again. Justice Blackmun toned down Chief Justice Rehnquist’s free legislative license and replaced it with a “strong presumption of constitutionality” in legislation involving economic decisions. By comparison, Justice Powell, in the majority in Fritz, arrives at a wholly different conclusion by relying heavily on Justice Brennan’s dissent in Fritz. In a far cry from Chief Justice Marshall’s calculating Congress, Justice Powell accuses Congress of “thoughtlessly [applying] a statutory classification.” He then echoes Justice Brennan’s concerns in Fritz and warns, “When a legislative purpose can be suggested only by the ingenuity of a government lawyer litigating the constitutionality of a statute, a reviewing court may be presented not so much with a legislative policy choice as its absence.” (p. 621) Therefore, we are left with a “strong presumption of constitutionality,” which implies that Congress at least thought about its actions, versus a total absence of decision-making - a wide gulf indeed. However, no modern judicial battle would be complete without Justice Thomas weighing in, which he did in FCC v. Beach Communications, Inc. In FCC, Justice Thomas, resorting to his usual modus operandi, defers to the Chief Justice’s majority opinion in Fritz. He writes, “Equal protection is not a license for courts to judge the wisdom, fairness, or logic of legislative choices,” and affirms that the rationality

Page 5 of 5 Blue book # 3931 review basis is a “paradigm of judicial restraint.” Further, Justice Thomas adds, “a legislative choice is not subject to courtroom fact-finding and may be based on rational speculation unsupported by evidence or empirical data.” In this area of equal protection that employs rational review, it seems perfectly acceptable to Justice Thomas that Congress act unwisely, unfairly, illogically, and base its decisions on speculation. If John Marshall were on the Court, one cannot help but believe that he would excoriate Justice Thomas for his extreme deference to Congress, since our system of government does not operate on the illusion that the three branches of government, if left to their own devices, are trust-worthy or trust each other. Granted, John Marshall allotted Congress its share of respect and autonomy, but he still recognized the possible presence of deceit and bad intentions in the legislature. It seems Chief Justice Rehnquist and Justice Thomas would have it otherwise in this area of law. John Marshall did well to recognize that Congress is not infallible, and he deferred to its power to decide which laws the country needs. Just because the Supreme Court believes that a law is useless or unnecessary is not reason enough to strike it down; what is reason enough to strike it down is a Congress attempting to achieve an illicit aim with a superficially constitutional law, or vice versa. In the years since McCulloch, the Court has attempted to engineer a constitutional formula that will at times prevent them from stepping on Congressional toes and at other times allow them to rap the knuckles of Congress. In the very least, the Court has proved that McCulloch is as robust today as it was in 1819.

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